In May this year, following the Supreme Court judgment that upheld the validity of the criminal defamation law, Pratap Bhanu Mehta reflected on ‘the paradoxes of the current court regime’ that “seems reluctant to intervene in cases that impinge upon fundamental rights but rushes headlong into policy matters that should be none of its business”.
The paradox does not end here.
The court that upheld the constitutional validity of sections 499 and 500 of the Indian Penal Code (IPC), providing for criminal defamation, felt that the law has no ‘chilling effect’ on free speech. In its judgment, the apex court observed, "the right to free speech is not absolute. It does not mean freedom to hurt another's reputation which is protected under Article 21 of the Constitution."
The judgment attracted sharp criticism from different quarters. And now, three months later, the Supreme Court in yet another judgment has diluted the sharpness of its earlier judgment.
On 24 August, the Supreme Court bench headed by Justice Dipak Misra – while hearing a petition filed by DMDK chief Vijayakanth seeking dismissal of a defamation case filed against him by the state government – told the Tamil Nadu Chief Minister J Jayalalithaa that as a public leader, she must learn to face criticism.
As reported by The Hindu, Justice Misra orally observed, “This is not the way... this is not the sign of a healthy democracy. This shows the State’s control over the sanctioning authority and prosecutor’s office in filing defamation cases against opponents, media and political rivals.”
The bench also added, “If somebody criticises the policy of the government, if the person criticised is a public figure, he has to face it instead of using the state machinery to choke criticism.”
By the 24 August order, the apex court to some extent redeemed the cause of free speech, apparently lost to the 13 May judgment, when it upheld the constitutional validity of the criminal defamation.
But the paradox still thrives. While the gravity of the defamation law was subdued by one stroke, the law of contempt which deters even ‘constructive criticism’ and highlighting of genuine cases of judicial corruption, still remains unbridled.
Indira Jaising, Senior Advocate, Supreme Court, reflecting upon this issue said, "The judges are as much a public figure as anyone else. While allowing unsubstantiated criticism of a judge or casting aspersions on a judges’ motive is not accepted, there is a host of administrative issues that can be open for public scrutiny and criticism. And one among them is the appointment of the judges. I agree to the proposition that people in public life and their conduct and activities should be open to criticism."
She adds,"If the court is not transparent in its functioning there will be criticisms.
There can be the genuine criticism of the way the court’s function on the administrative side and it should not invite contempt. Also, criticism of judgment too should not invite contempt
On being asked how the fear of contempt deters the media from highlighting even the genuine cases of corruption – a fact that is even acknowledged by constitutional expert Fali S Nariman in his book The State of The Nation – Jaising said, “See you cannot make allegation of corruption unless you have credible ground for it. But yes it is true that fear of contempt is a big hindrance in bringing up the cases of corruption in the judiciary. I feel it is not a job of the member of the public to provide proof. Our job is to convey the information we have, so long it is credible. It is then up to law enforcement authorities to investigate the case. Here, however, the opportunity to investigate is being denied because of the contempt."
In his book The State of The Nation, Nariman writes, "In India, the higher judiciary has inherent (and almost unbridled) powers of contempt – even beyond the laws enacted by Parliament. And for that reason, the media and the whole lot of information-seeking agencies, which are not sure of how contempt law will be interpreted, are tight-lipped. No one dares to come out with what they believe to be the facts (in any matter pertaining to judges or administration of justice) even though the law (amending the Contempt of Courts Act 1971) now permits 'justification by truth' as a valid defence."
In July 2014, a young intern levelled allegations of sexual harassment against a former judge of the apex court. What followed was enough to break the spirit of even the most indomitable fighter. Adding to it was a Rs 25-crore defamation case filed against the 'victim' and various media houses who reported the news, and an injunction from the Delhi High Court curbed any reporting of the allegations. One might wonder how such immunity can be available to anyone else.
In "PN Duda v. P Shiv Shanker" case the Supreme Court observed, “Administration of justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour. Thus the judges must do, in the light given to them to determine, what is right. Any criticism about the judicial system or the judges which hamper the administration of justice or which erodes the faith in the objective approach of the judges and brings the administration of justice to ridicule must be prevented”.
Talking about the contempt the court remarked, “The contempt of court proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains. In the free marketplace of ideas criticism about the judicial system or judges should be welcome so long as such criticism does not impair or hamper the administration of justice”.
Though it is true that the faith of people in the judiciary needs to be maintained. But, does faith need to be blind, devoid of logic and questioning? When there is obvious wrongdoing on part of anyone entrusted with the responsibility of justice, how does one talk about it, as there is always a risk of being accused of ‘attributing motives’.
Lord Atkin, in the famous 'Ambard v. Attorney-General for Trinidad and Tobago, ' observed, "Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even if outspoken, comments of ordinary men".